Dissenting opinion of EDMONDS, J. land was attempted to be taken out, above it, for a public use, without compensation. The chancellor restrained the act by injunction, declaring it to be a clear principle of law, that the owner of the land is entitled to the use of the stream, and the law gives him ample remedy for the violation of this right. In Boston and Roxbury Mill Dam Co. v. Newman (12 Pick. 467), a corporation was authorized by the legislature to create water-power by penning tide-water in a full basin, and excluding it from another, which was to receive it through race-ways, and the person who owned the flats in the receiving basin suffered an injury by the exclusion of the water from his land, and was thereby prevented from beneficially using his land; it was held, that he was entitled to compensation. In three cases of the United States supreme court, City of Cincinnati v. Lessee of White (6 Pet. 431), Barclay v. Howell's Lessee (Id. 498), and New Orleans v. United States (10 Pet. 662), the right of ferriage, and the right to a landing-place were held to be appurtenant to the adjacent land, even in navigable rivers. From this examination, I arrive, very naturally, at the conclusion, that the plaintiff has rights, as riparian owner, which the defendants have invaded, and that those rights are property, more or less valuable, for the destruction of, or injury to, which, the plaintiff has a valid claim to compensation. But the question does not arise, whether the defendants ought, ere this, to have had the plaintiff's damages assessed, in the manner pointed out in their act of incorporation, for this suit does not aim at ousting the defendants of their possession of the soil covered by their embankment, or at trying their title to it, or right to occupy it. If it were so, it would be necessary for us to examine some of the cases which seem to deny the right of the state, either in its proprietary character, as owner of the soil, or in the *exercise of its right of eminent domain, as the sovereign, to make any * 558 ] Dissenting opinion of EDMONDS, J. grant of the soil of navigable rivers. I, therefore, purposely abstain from expressing any opinion as to the right of the defendants to occupy the land in question, until compensation be made. But the action is to recover damages of them for such their occupation, and that does not involve the question, whether they have any right to occupy at all, but whether, for their occupation, they are not bound to respond in damages; the action affirming the occupation rather than disaffirming it. Besides, as no "land" of the plaintiff is taken by the defendants, though his "property" is, there may be a question, whether the defendants could avail themselves of the privilege of having his damages appraised, in the mode pointed out in the statute. Upon that point, also, I do not mean to express any opinion, it being sufficient, to ascertain whether the plaintiff can recover any damages for the injury to such a right as, it seems, he has in this case, it being in the nature of a franchise or incorporeal hereditament, and not land or the soil itself. The cases are numerous which show that he. may. Thus, for obstructing a water-course, Anon. (4 Dall. 147), Shaw v. Crawford (10 Johns. 236), People v. Canal Appraisers (13 Wend. 371); for diverting a water-course, Gardner v. Newburg (supra), Haynes v. Gault (1 McCord 543), Palmer v. Mulligan (3 Caines 319); for obstructing the navigation in a navigable river, Bacon v. Arthur, (4 Watts 436), Hogg v. Zanesville Manufacturing Co. (5 Ham. 410); for intruding on a several fishery, Carter v. Murcot (4 Burr. 2162), Hooker v. Cummings (20 Johns. 90); for destroying a landing-place (in addition to the value of the ground), Ex parte Rogers (6 Cowen 551); for obstructing the free passage of the owner of an adjacent lot, unto and upon the street, to and from his land, Fletcher v. Auburn & Syracuse Railroad Co. (25 Wend. 462), Chapman v. Albany & Schenectady Railroad Co. (10 Barb. 367); for injury to the franchise of a turnpike company, Seneca 6 N. Y.-33 513 Dissenting opinion of EDMONDS, J. Road Co. v. *Auburn & Rochester Railroad Co. * 559 ] (5 Hill 170), In re Flatbush Avenue (1 Barb. 294). The general doctrine is briefly stated by the reporter, in his note to 6 Cowen 552, where he opposes the principle of the canal appraisers, in allowing as damages only the value of the land for agricultural purposes, and excluding the value derived from a landing-place and a fishery. He says, and, I think, very justly—"The value arises from the local situation and advantages; the worth in market and the revenue derivable, is to be taken into the account." And it is also conceded by the court of errors, in Commissioners of Canal Fund v. Kemp shall (26 Wend. 421). "The proprietary interest in the water-power is a necessary incident to a freehold grant, and entitles the owner to compensation for any appropriation or suspension of these privileges for the public use.' When private property of any description is destroyed, and its beneficial enjoyment is essentially impaired, in the prosecution of public works, it is taken for public use. The state has no more right, by an artificial erection like the state dam, to overflow and destroy a valuable water-fall in a tributary stream, without paying for it, than it has to overflow and destroy a valuable farm upon the adjacent shore. In principle, they stand upon the same ground. People v. Canal Appraisers (13 Wend. 373). I do not regard the case of Lansing v. Smith, in 8 Cowen 146, and in error, 4 Wend. 9, as at all conflicting with the view I have taken of this case. There, the riparian owner was not entirely cut off from his rights in the water, but, by a public improvement, others were also permitted the enjoyment of similar rights, and thus, the value of his was impaired, and the only question was, whether the right of eminent domain might be so exercised, by authorizing a public improvement, which would extend to others the right which the riparian owner had, from his position, enjoyed exclusively, but to Dissenting opinion of EDMONDS, J. which exclusive enjoyment he had no valid claim. And the court for correction of errors was careful not to affect the question now raised, and which was not raised in that case. The chancellor, who delivered the opinion *of the court, says, "whether the legislature could grant the right to any person to build a [ * 560 wharf in front of the plaintiff's, so as to destroy his, entirely, is a question which is not necessary now to discuss." And yet that is, as I understand it, the precise question which is raised in the case now before us. These defendants have made an erection in front of plaintiff's land, which has entirely destroyed his waterright, with all its privileges, and the question is, can the legislature authorize them to do so, without making compensation? For the reasons I have above given, I think, they cannot, and I am, therefore, of opinion, the plaintiff ought to recover. Judgment affirmed.1 See, to the same effect, Getty v. Hudson River Railroad Co., 21 Barb. 617. The court of errors and appeals of New Jersey, dissented in toto from the doctrine of this case, in Stevens v. Paterson and Newark Railroad Co., 5 Vroom 532, 559. And see Bell v. Gough, in the same court, 3 Zab. 624, 678; s. c. 2 Ibid. 461-2, where it is ruled, that riparian owners have a vested right in the benefits and advantages arising from their adjoining the water, of which they cannot be deprived, without compensation. Keyport Steamboat Co. v. Farmers' Transportation Co., 3 C. E. Green 22--4. And the same view of the law has been taken by the supreme court of the United States. In Yates v. Milwaukee, 10 Wall. 497, it was decided by that court, that an owner of land, bounded by a navigable river, has certain riparian rights, whether his title extend to the middle of the stream, or not, among which are, free access to the navigable part of the stream, and the right to make a landing, wharf or pier, for his own use, or for the use of the public. “This riparian right," says Mr. Justice MILLER, "is property, and is valuable, and though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right, of which, when once vested, the owner can only be deprived, in accordance with established law, and if necessary that it be taken for the public good, upon due compensation." (Ibid. 504.) And see Dutton v. Strong, 1 Black 23; Railroad Co. v. Schurmeir, 7 Wall. 272. The supreme court of Statement of the Case. CORWIN V. FREELAND et al. Practice.-Arrest in execution. Where an order of arrest has been granted, under 179 of the code, on the 'ground that the debt had been fraudulently contracted, which remains in force, it is not necessary that the record should show the defendant's liability to arrest, in order to justify an execution against the person, founded on the judgment, under 288. Corwin v. Freeland, 6 How. Pr. 241, reversed. APPEAL from the general term of the Supreme Court, in the sixth district, where a judgment rendered for the plaintiff, in a case tried before the court, without a jury, had been affirmed. (Reported below, 6 How. Pr. 241.) This was an action for false imprisonment brought by Corwin, the plaintiff, a merchant of Ithica, in Tompkins county, against the defendants, merchants in the city of New York, for an alleged illegal arrest and detention on final process. *The answer set up, by way of justification, *561] that on or about the 8th day of April 1850, the defendants commenced an action in the supreme court against the plaintiff in this suit, to recover the price of a bill of goods alleged to have been sold by them to the plaintiff. That on the 9th day of the same month, an order to arrest the plaintiff, and hold him to bail, was Pennsylvania decided that a riparian owner was entitled to compensation for the loss of a spring, between high and low-water mark, occasioned by the construction of a railroad. Lehigh Valley Railroad Co. v. Trone, 28 Penu. St. 206. But see Commonwealth v. Fisher, 1 P. & W. 462, 467. The cases are, perhaps, reconcilable, by a consideration of the fact, that in New York, as in some other states, the title of the riparian owner only extends to high-water mark. See Barney v. Keokuk, 4 Otto 324. |